Plaintiff fell in a pothole and was injured while crossing a service drive next to her home and so sued the City of Chicago. The City’s Tort Immunity Act motion for summary judgment was affirmed on appeal. Crespo-Fregoso v. City of Chicago, 2021 IL App (1st) 200972 (August 9, 2021). The Local Governmental and Governmental Employees Tort Immunity Act provides that “a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used ***.” 745 ILCS 10/3-102(a) (West 2018). The City asserted that the plaintiff did not fall at a crosswalk or a sidewalk and therefore was merely a “permitted” user but not an “intended” user of the service driveway. Therefore the City had no duty to the plaintiff to maintain the service driveway in a reasonably safe condition for pedestrian use. This is true even though the sidewalk on the east side of the service drive ended next to plaintiff’s vehicle and there was no sidewalk available for plaintiff to use on the west side of the service drive.

The Appellate Court went on to grant summary judgment on another basis- that the pothole was 2-3 feet long and 3-5″ deep and was an “open and obvious” condition. Generally, one who owns, occupies, or controls and maintains land is not ordinarily required to foresee and protect against injuries from potentially dangerous conditions that are “open and obvious”.  The City was not required to foresee and guard against the danger and the magnitude of burden of guarding against Plaintiff’s injury and of placing that burden on City would be immense. In particular, the Court recognized that the “costs of making all public streets and roadways reasonably safe for unrestricted pedestrian use would be an extreme burden on municipalities with limited resources”.  

Local government bodies are often seen as deep pockets. A skilled government litigator who is familiar with the Tort Immunity Act is invaluable. If you have Tort Immunity questions, please reach out to your Tressler attorney.

For more information about this article, contact Tressler attorney John O’Driscoll at

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